Permanent Blood Suckers! Local Counties to Institute Permanent DWI Blood Draws!! by Collin County DWI attorney Troy Burleson
By Collin, Dallas and Denton County DWI Lawyer Troy Burleson
As we have reported before, police agencies have grown frustrated with citizens exercising their right to refuse a request for a breath test when being investigated for DWI. Therefore, many local counties have instituted experimental “no refusal” weekends in which police seek a search warrant to take a blood sample if someone suspected of DWI refuses a breath test.
According to a recent report from the Dallas Morning News, “no refusal” programs are shifting from temporary holiday and weekend initiative to permanent programs. The Dallas Morning News reports that on May 2, the city of Burleson made this a year round practice; Collin County plans to make “no refusal” a regular weekend program beginning on Labor day; Denton County will hold its first “no refusal” weekend over Memorial Day and plans to make it an regular weekend policy; and Johnson County has plans in the works for a permanent “no refusal” weekend.
Many may be concerned about the onslaught of local counties out for blood. We on the other hand welcome it because it puts police under tremendous pressure to do their job. The amount of publicity generated around these “no refusal” policies will make it more difficult for prosecutors to convict people without a blood or breath sample.
Let me explain. There is a law known as the Implied Consent Law. Essentially, when you received a driver’s license one of the conditions of the license was that you would provide law enforcement a blood or breath sample if it was requested during a DWI investigation. However, this is NOT an absolute requirement. A person may withdraw his or her implied consent by simple refusing to take a test when asked. Once you withdraw your consent, officers can either 1) mark that you refused a breath or blood request of 2) seek a warrant for your blood.
If the officer marks that you refused, instead of seeking a blood warrant, then your refusal may be admitted as evidence against you at your trial. The jury can do whatever they wish with that evidence. They can either us it as an admission of guilt or totally disregard it altogether. Below is a typically closing from a prosecutor on a refusal case:
Prosecutor: “Ladies and gentlemen of the jury. We have presented you evidence that the defendant was offered and refused a breath test. The question is why. You have heard that if the defendant provided a sample his license could have been suspended for 90 days. But, since he refused his license could be suspended for 180 days. Now, I love Dallas but it is not New York City. What I mean by that is that we do not have the mass transportation systems that most big cities have. We don’t have the buses, the trains, the taxis like they do. Therefore, if the defendant was willing to give up his driving privileges for 180 days there was a good reason. And, that reason wasn’t because he was afraid to blow into a painless breath test. The reason was because the defendant knew it would have been over the legal limit.
As a rebuttal, defense attorneys often remind the jury that the officer could have got a warrant for the defendant’s blood and brought the jury a scientific test and the officer didn’t for whatever reason. Maybe the officer knew the defendant was NOT over the legal limit. This is usually a very good argument if done properly. Most juror will say, “why hold it [a refusal] against the defendant and not hold it [failure to get a warrant] against the police?’
The defense argument is typically countered by the officer on direct testimony. Until now, the police would say that they did not have a policy at their department that would allow them to obtain a blood test. That is no longer available. The police agencies have painted themselves in a real corner. They can no longer say “we don’t have a policy.” Police will now have to bring a jury a SCIENTIFIC TEST showing intoxication. If not, defense attorney will pound the officers with news reports like this.
But, the question with all these “no refusal” weekends is “what are the police trying to accomplish?” Sure, they say they are just trying to protect the roadways from drunk drivers. And, I believe that may be one of the motivations but that cannot be the exclusive reason. Most counties loose fifty percent of the DWI cases they take to trial. That is a TON of money wasted prosecuting people who are ultimately acquitted. But, if these police departments are serious about making these “no refusal” weekends permanent then more taxpayer money will be at stake. There will be expenses for taking a suspect to the hospital, overtime for the officer, cost for the tests, decreases enforcement on the streets because officers will be at hospitals, etc.
What the police are trying to accomplish is they are trying to force citizens, through the treat of injecting their body and drawing blood, into giving unreliable breath tests. There are three ways the police can test you alcohol concentration: 1) breath, 2) blood or 3) urine. What is the main difference between the choices? The most glaring is that blood and urine can be retested by an independent facility to insure the tests accuracy. With breath, once you give a sample there is no way the machine can keep your breath so that it can be independently tested. Therefore, you just have to rely on a highly dispute, antiquated piece of machinery to decide your future.
If police want to take peoples’ blood I say “good, go ahead.” There are still many obstacles an officer must go through before the blood is admissible in court and if I had the choice of giving an unreliable, non-confirmable breath test or a test (like blood) that can be retested by my attorney to assure its accuracy, I go blood every time. This attorney says, “Bring on the blood.” And I and turn will bring on defenses.